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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply... (More)

About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply. My long, strange career trip has included law and management jobs in two Fortune 50 companies, before founding the legal search and staffing firm Cushing Group, Recruiters. I've lectured on negotiation and settlement strategy, and teach graduate courses at Golden Gate University (Adjunct of the Year for a doctoral seminar on business, law and society). Illinois, Texas and California (Inactive) admitted me to law practice; I hold JD and MBA degrees from the University of Illinois, and a BGS from the University of Michigan, with Distinction. There -- Go Blue! Personally, my daughters are a lawyer in NY, and a pre-med student in NM - their lives-and-times often animate these columns. I'm active in animal advocacy matters, having led a citizen team that took Alameda's city animal shelter to a non-profit operation - we saved $600K annually and the lives of some 700 companion animals/year vs. the City's best alternative. I'm delighted with that success. My family has re-homed 144 foster animals over many years; we host four boisterous border collies of our own. Mostly for humane movement efforts, I was nominated for GQ magazine's 2009 Better Men, Better World Award. You may notice that many of my rants relate to critter issues. In addition to the Raucous Caucus blog, I frequently contribute to The BARK magazine, and am a proud Moderator emeritus on the popular news and humor website www.Fark.com. I prefer scotch over imported beer (Hide)

‘Much Ado’ or is it Adios for ObamaCare?

Uploaded: Jul 23, 2014

My grandfather, the Accountant, had little use for law or lawyers. In his orderly view of the world (and quite apart from his dismay about the romantic attachments of one Mr. Justice Douglas), the whole legal process was inefficient: The Law was out there in immutable absolute principles. Thus, you shouldn't need a baseball team of judges to find it; one really good Justice ought to be a sufficient law giver.

The problem, of course, is that law is not science in the way that a brick dropped on your foot will never defy the Law of Gravity. Rather, it is political philosophy: thus, reasonable minds may differ as to its proper coverage and emphases in governing the affairs of people. In other words, law is human, and subject to the same philosophical influences that place us each on a political spectrum from Left to Right. And its processes are messy, as reflected in the famous 'laws and sausages' metaphor.

That's why an odd number of appellate judges > 1 is required, Gramps, and why the positioning of the fifth-vote out of nine Supremes is most important.

The Affordable Care Act/ObamaCare approach to health care is a product of the legislative schnitzel factory. It represents compromise, first crafted by the conservative Heritage Foundation in the 1990s, as an alternative to a so-called single-payor system of universal coverage popular elsewhere in the First World.

Introduced as an early stab at bi-partisanship, it immediately morph'd into the Worst Thing Ever in some circles, and passed with nary a GOP vote. It has been battered and altered by a barrage of legal challenges, bedeviled by scurrilous campaigns of disinformation, and confounded by delay and its own early mismanagement. Despite all that, enrollments are now brisk, the coverage-age distribution satisfactory and folks are paying their premiums. It is getting on with the hard work of improving health and relieving suffering.

Not that the batterings have ceased. The GOP House majority continues to shake an impotent fist (there's pharmaceutical coverage for that, I'm told) by voting to repeal the law on a roughly weekly basis when they're in session (despite having no time to reform immigration, but that's another column). And here come two lawsuits, birthed by the libertarian Cato Institute, that seek to invalidate the work of the federal government's much-maligned website: healthcare.gov.

At issue are the ACA's subsidies to insureds earning less than a threshold income. As drafted, the subsidies go to individuals who purchase their health insurance through "exchanges run by the state." Not included was a further clause "or the federal government-sponsored exchange," which is accessed by the feds' website. Some states have established their own exchanges (Covered CA, for instance), but a majority have not  relying instead on the federal version. Indeed, more individuals have accessed coverage via the federal site than all the state sites, combined.

The lawsuits, both of which failed at trial, allege that the absence of specific federal exchange language in that single provision of a 2,000-page bill is fatal to the provision of all those federal exchange-accessed subsidies, which are the defining element of the legislation.

As you've probably read, yesterday two federal intermediate appeals courts came to simultaneous, diametrically opposed conclusions on the subject. It would shock my granddad to know that they split along the partisan divide: two GOP-appointed judges in DC overruled their trial judge (with one Dem dissent), while the all-Dem 4th Circuit panel in Richmond unanimously upheld the lower court in allowing the federal exchange subsidies. The DC Court did its work "with reluctance," which is what judges often write when they know they're out on a flimsy limb, and suspect they'll be reversed -- but they just can't help themselves.

Who has the better argument? Well, with the caveat that where you come-out has a Lot to do with where you came-in on the political spectrum, I think the ayes have it. The subsidies are the central, even defining characteristic of ObamaCare  they are what does the most to expand the coverage it provides. To argue that the federal exchange was to be consciously excluded from their provision strains logic. There is no reference to such intent anywhere in the reams of the so-called legislative history papers that preceded the bill's passage. Reading and interpreting the bill as a whole, and in light of its evident purpose, it seems clear that there was no intent to exclude the largest exchange from the primary purpose of the Act.

The contrary arguments are that the federal exchange was left out specifically to incentivize the states to form their own exchanges, and that it's not the courts' job to repair legislation. The former would make a better case if there was anything in the history, or subsequent implementation that remotely reflects such an incentive system. Surely, those incentives would have been front-and-center in the activation process.

As to the latter argument, there are interpretive rules that point both ways, leaving the judges ample rope on which to hang a conclusion, or themselves from that philosophical limb.

Where do we go from here? Tactically, the feds have promised to seek so-called "en banc" rehearing of the case, meaning that it would be argued before All the DC Circuit judges. The Richmond plaintiffs will probably seek immediate Supreme Court review. It seems likely that the DC Circuit will vote to hear the case en banc  a majority of them are Dem appointees, which also suggests the ultimate outcome of that review (sorry, Grandpa).

It's also likely that the Supremes will defer handling any appeal until both Circuits have finally opined. Whether one case or the other will ultimately be heard at the highest level is unclear. There are two primary reasons for them to decide the issue  either it is socially very important to rule on the subject, or there's a conflict between/among the intermediate circuits that needs to be resolved, so that there is one rule across the land.

Here, delay favors the proponents of the law. There may not even Be a final Circuit conflict, and the more institutionally ingrained the ACA becomes, the more difficult to unscramble the egg, and the better it may be perceived to duck the issue, or defer to Congress.

My grandfather would not be pleased by this unruly state of human affairs, but at least he couldn't have blamed Justice Douglas this time.

Posted by Formerly Dan from BC,
a resident of Bridle Creek,
on Jul 23, 2014 at 4:54 pmFormerly Dan from BC is a registered user.

Tom,

You posit: "To argue that the federal exchange was to be consciously excluded from their provision strains LOGIC."

It doesn't strain logic and I'll tell you why in one simple quote from the person responsible for pushing this badly written law: "But we have to pass the bill so you can find out what is in it, away from the fog of the controversy."

Nancy Pelosi, former SOTH.

Obviously our - supposed - betters in congress just simply didn't know what they were voting for. But to say this strains logics? Nope, don't buy it at all.

And the language in the law is unambiguous: exchanges shall be set up "by the states". The problem is that 34 states did not want to set up exchanges. The Executive, in an attempt to increase the subsidies, then created federal exchanges, without any authority to do so and completely usurping congressional authority.

Again, unambiguous

And you badly mischaracterized the DC circuits "reluctance" quote. They were not reluctant to rule because of perceived failure at the supreme court level, they were reluctant because "...our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal exchanges and for health insurance market more broadly."

Posted by American,
a resident of Danville,
on Jul 23, 2014 at 5:27 pm

This is exactly why in 23 years of practice, I always insist on a jury trial, rather than a court trial by a political appointee who more likely than not bases their decision on their political parties view of the issue rather than precedent and jurisprudence. Governor Brown appointing to the California Supreme Court today a person with far left political views who never was even a Judge Pro Tem or Superior Court Judge anywhere, is an embarassment to our legal system. Even a gifted ball player must start in AAA before the majors, just like a Supreme Court judge should have to be a judge somewhere for a while.

Posted by San Ramon Observer,
a resident of San Ramon,
on Jul 23, 2014 at 9:44 pmSan Ramon Observer is a registered user.

Obamacare is a mess. Obama tried so hard to please Republicans that he wound up pleasing nobody. Why didn't he just extend Medicare to everyone? It works and there are supplemental policies that can be purchased for a reasonable price to cover what Medicare doesn't. That's an effective combination of Government healthcare and private insurance that works. Ask anyone over 65 if they would give up their Medicare for Obamacare. I wouldn't.

Posted by Peter Kluget,
a resident of Danville,
on Jul 24, 2014 at 7:55 am

It's good to have someone like Formerly Dan around to keep us all current with whatever disinformation is being fed to the foot soldiers of the right wing. I'm sure he doesn't make this stuff up; someone must be distributing it to him and his like-minded Foxbots.

"The Executive, in an attempt to increase the subsidies, then created federal exchanges, without any authority to do so and completely usurping congressional authority."

Uh, no. The option of using a federally-operated exchange, partially or entirely, was always available for the states which didn't set up their own exchanges. It's part of the law as enacted by Congress. There's no significant difference between how state and federally-run exchanges work unless a state decides to opt for a waiver to run a different system which meets the goals of the ACA by somewhat different means (Vermont is reportedly working on a single-payer system.)

That's what makes the Republican judge's ruling so tenuous. If there was an intent to essentially gut a basic feature of the law in states with federally operated exchanges you'd expect that intent to be stated clearly, or for some reason for the disparate treatment to be evident. It isn't. If the word "in" had been used instead of "by" the issue disappears. The language they are hanging their hats on is the kind of imprecise drafting that appears in virtually all laws, legislated or voted into effect, and is routinely addressed just like this is being addressed.

This situation is not unique, or even uncommon. It only becomes a big deal when there is an ideological desire to bash the legislation at every turn.

Posted by Formerly Dan from BC,
a resident of Bridle Creek,
on Jul 24, 2014 at 8:50 amFormerly Dan from BC is a registered user.

"If there was an intent to essentially gut a basic feature of the law in states with federally operated exchanges you'd expect that intent to be stated clearly, or for some reason for the disparate treatment to be evident."

Ok please quote the feature of the law that describes Fed exchanges. I'll wait.

Posted by Peter Kluget,
a resident of Danville,
on Jul 24, 2014 at 9:25 am

Section 1321 (c) of the ACA provides that in any state which fails to establish an exchange "the Secretary [i.e., the federal government]... shall establish and operate such Exchange within the state." That is "exactly" where in the law it was written. Don't take my word for it - or the word of any of the hundreds of articles and explanations written about the ACA when it was passed and afterwards - look it up.

There is no indication anywhere in the law that those exchanges are supposed to be governed by different standards than the exchanges set up by states.

Posted by Conservator,
a resident of Danville,
on Jul 24, 2014 at 9:51 am

Dan, Respectfully, do you live to refute every written word and thought that Tom publishes? Frankly, it's your right but surely it must get quite numbing to carry-on with such a self-inflicted burden. Just my opinion but life is simply too short for perpetual debates without really changing hearts and minds of the regular antagonists.

I haven't reviewed the specifics from the most recent independent rulings but I would suspect that subsection 'c', as follows, has got to be at the heart of where this is being battled.

Source: Web Link [This bill was enacted after being signed by the President on March 23, 2010. The text of the bill below is as of Aug 25, 2010 (Passed Congress/Enrolled Bill).]

PART IIISTATE FLEXIBILITY RELATING TO
EXCHANGES / SEC. 1321. STATE FLEXIBILITY IN OPERATION AND ENFORCEMENT OF
EXCHANGES AND RELATED REQUIREMENTS.
...
(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.
(1) IN GENERAL.If
(A) a State is not an electing State under subsection
(b); or
(B) the Secretary determines, on or before January
1, 2013, that an electing State
(i) will not have any required Exchange operational
by January 1, 2014; or
(ii) has not taken the actions the Secretary determines
necessary to implement
(I) the other requirements set forth in the
standards under subsection (a); or
(II) the requirements set forth in subtitles A
and C and the amendments made by such subtitles;
the Secretary shall (directly or through agreement with a notfor-
profit entity) establish and operate such Exchange within
the State and the Secretary shall take such actions as are
necessary to implement such other requirements.
(2) ENFORCEMENT AUTHORITY.The provisions of section
2736(b) of the Public Health Services Act shall apply to the
enforcement under paragraph (1) of requirements of subsection
(a)(1) (without regard to any limitation on the application of
those provisions to group health plans).

Posted by Tom Cushing,
a resident of another community,
on Jul 24, 2014 at 10:33 am

Nuke: Gratuitous Nancy-slam aside, ho-hum, there is ambiguity in the language of our land, and it finds its way into the law -- hence there have ALways been 'Rules of Construction' to guide the courts in divining what the legislative branch intended. Here's a nice wikipedia reference to get you started: Web Link Technical corrections are fairly routine, and before the Age of the Radical Recalcitrants, they were unremarkable. Frankly, I'd have expected a little more tolerance of such linguistic frailties from a guy whose posts are so chronically loaded with language flaws.

Michael: I'm trying to understand the significance of what you wrote about the JFK quip. If it was serious, you are aware, aren't you that he practiced law for 10 years with DOJ and as a committee counsel, prior to his appointment as AG? He Was young; that said, he was a bolder Justice chief than many others, before, since and currently. He pushed against the institutional evils of the day -- Organized Crime, union racketeering and segregation among them. Contrast Holder's timid coddling of the banksters.

Roz: I think he knew that a single payor plan couldn't pass, as it didn't when Hillary went down in flames for it in the '90s. That's too bad, in my view, but politics is the art of the possible. Even the ACA was only barely possible.

That said -- it's working reasonably well, despite all the cynical disinformation. As somebody once said: never have so few folks worked so hard to deny a life-saving benefit to so many. Best to keep eyes on the prize here -- it's real and fundamental, and it literally saves lives.

Peter: yup. It was once suggested that you are me -- to which I responded "thank you."

The key issue in these cases is whether people who buy health insurance on the Federal Exchange are entitled to a tax credit. The ACA added a new section to Internal Revenue Code, Section 36B, which clearly spells out what you have to do to get that healthcare tax credit. It says tax credits are available only to people who purchase insurance on an "Exchange established by the State." It doesn't say you get a tax credit if you purchase a tax credit on the Federal Exchange. The DC circuit concluded that if you buy insurance on an exchange established by the Feds or a private company or any other insurance exchange, then you haven't met the requirements detailed in Sec. 36B, thus you don't get the tax credit.

I love the simplicity of that argument. It's like any other tax credit. If you don't meet the requirement set forth in the tax code, then you don't qualify for the credit.

The liberal justice who dissented in the DC Circuit case said that the tax credits were a key part of the ACA and that the government intended to grant tax credits to people who purchase insurance on the federal exchange. Unfortunately, that's not true. As the DC Court notes in their opinion, "the scant legislative history sheds little light on the precise question of the availability of subsidies on federal Exchanges." The court notes that the liberal dissenting judge "leans heavily on a more abstract form of legislative history  Congress's broad purpose in passing the ACA and that it is "inconceivable" to think that Congress would have risked the ACA's "stability" by making subsidies conditional on states establishing Exchanges." Yet, as the court noted, that's exactly what the ACA enacts in federal territories, such as the Northern Mariana Islands. They don't get any subsidies there, yet they must buy insurance. The ACA also didn't provide insurance subsidies for the long-term care insurance program known as CLASS. Congress repealed the CLASS portion of the ACA in 2013.

The court's majority noted that the IRS is not permitted to adopt regulations overriding the tax code. The tax code is the law. The IRS is supposed to interpret the law, not re-write the law. The DC Circuit ruled that the IRS shouldn't give tax credits to people who don't meet the requirements of Sec. 36B of the tax code.

As the DC Circuit noted, the courts have ruled time and again that statues mean what they say. It's not a court's role to "correct" the text of a statute to better serve the statute's purposes. Courts can't add new clauses to a statute so that what was omitted by inadvertence may be included. It's up to Congress to go back and fix whatever they want fixed. The courts have no legal authority to re-write statutes.

On the other hand, the court should not follow the literal meaning of the statute when doing so would "render the statute nonsensical or superfluous or create an outcome so contrary to perceived social values that Congress could not have intended it." But there must be evidence that Congress meant something other than what it literally said before a court can depart from the plain meaning of a statute. The DC Circuit ruled that standard wasn't met due to "scant legislative history." The DC Circuit quoted the Supreme Court noting, "it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law."

The Fourth Circuit Court ruled the opposite way on this issue. They acknowledged that if the statute is clear and unambiguous, then that is the end of the matter for the court as well as the agency. The court and the IRS must give effect to the unambiguously expressed intent of Congress. A statute is ambiguous only if the disputed language is "reasonably susceptible of different interpretations."

The Court acknowledged that the language of Sec. 36B of the tax code is plain. Sec. 36B says to get a tax credit, you must purchase insurance established by the State. The word "State" is a defined term and the court acknowledges "State" does not include the Federal Government.

But here's how the Court gets around it. They note that Section 1311 of the ACA says, "…each State shall establish an… Exchange," and "such Exchange shall be a government agency or nonprofit entity that is established by the State." If a state doesn't establish an Exchange, then Section 1321 of the ACA says the Federal Government "shall establish and operate such Exchange."

The Court says that since Section 1311 defines "Exchange" as "an Exchange established by the State," then "it makes sense" to conclude that the Federal government is acting on behalf of the State when it forms an Exchange. In other words, an exchange established by the federal government is really an exchange established by the state, thus the taxpayers are allowed a tax credit under Sec. 36B. They ruled that since this was a plausible interpretation, they deferred to the IRS rules that allow tax credits.

It didn't "make sense" to the DC Circuit, of course. They ruled that the statute means what it says. There's no ambiguity. There's no language in there saying the Federal government is "acting on behalf of the state." Nothing in Sec. 1321 says federal exchanges are "Exchanges established by the State." This omission is particularly significant since Congress knew how to do that elsewhere in the ACA. In a nearby section, the ACA provides that a U.S. territory that elects to establish an Exchange "shall be treated as a State." The absence of similar language in Sec. 1321 suggests that even though the federal government may establish an Exchange within a state, it does not in fact stand in the state's shoes when doing so.

The Fourth Circuit court acknowledged this shortcoming, noting, "the court cannot ignore the common-sense appeal…a literal reading of the statute undoubtedly accords more closely with the position [that an Exchange established by the Federal Government is not an Exchange established by the State]."

Obama has packed the DC Circuit with extra Democrats, so if the case is reheard by the full bench of the DC Circuit no doubt they will rule in Obama's favor.

But Obama likely won't be able to squash all dissent. There's a good chance this issue will make it up to the Supreme Court eventually. It will be interesting to see how they decide this.

I think the Supreme Court's decision in UARG v. EPA is a good indicator that this portion of the ACA will get struck down. That case concerned the EPA's "Tailoring Rule" in which it "tailored" a statutory provision in the Clean Air Act. The majority opinion said:

"Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution's separation of powers… The power of executing laws … does not include a power to revise clear statutory terms that turn out not to work in practice."

Posted by San Ramon Observer,
a resident of San Ramon,
on Jul 24, 2014 at 4:05 pmSan Ramon Observer is a registered user.

Tom,

Obama made two big mistakes, and he took too long to realize these were big mistakes. One, he thought Republicans would cooperate with him and two, he didn't address the economic situation and the jobs situation fast enough or hardly at all. He spent too much time and effort on getting his medical plan passed.

You said, "Roz: I think he knew that a single payor plan couldn't pass, as it didn't when Hillary went down in flames for it in the '90s. That's too bad, in my view, but politics is the art of the possible. Even the ACA was only barely possible."

That was if he wanted a bi-partisan plan. When it was clear (and it was fairly early in his first term), that Republicans would not participate in any plan he proposed, he should have switched to a single-payer plan.

He's been criticized for barely getting ACA passed with a Democrat majority in the House and Senate. That's because it wasn't the plan Democrats wanted. When he saw that this could be passed only by the Democrat majority, he should have switched to a single-payer plan and dumped the 2200 pages of confusing legalese.

Also Hillary Clinton's plan was 20 years earlier. More voters might have been receptive to it after the nightmare, go-for-broke or die, medical stories in the news over the last 20 years.

Posted by Michael Austin,
a resident of Pleasanton Meadows,
on Jul 24, 2014 at 4:08 pm

Tom,
I posted the Jack Kennedy quote because when I read American post about unexperienced judges, I was reminded of it. Jack Kennedy came under fire for appointing his younger inexperienced brother to the AG job.

Robert Kennedy was hired by Senator McCarthy as minority counsel for the Senate Committee investigating domestic communism early 1950's. McCarthy was a close friend of Joseph Kennedy and visited the Kennedy compound often.

Passing Obamacare the way that it was has been horribly divisive for this country. Voters were so mad it cost the Democrats control of the House of Representatives. A big portion of the country is still furious about it. It passed by only one vote in the senate, warts and all, because Democrats knew that if they sent it back to Congress to try and fix its problems it would never pass. Not a single Republicans voted for it. Imagine if a slim majority of Republicans did the same thing with legislation that Democrats found repugnant. Democrats would be furious. It would divide the country. A slim majority should not force legislation on nearly half of America. This will continue to divide Americans for years.

Here's an idea, why not let each state decide what's best for its people? Why was it necessary for the Federal Government to step in and create a one-size-fits-all "solution" to America's healthcare crisis? Massachusetts and other states were already addressing the health insurance crisis in ways that were tailored to meet the needs of their constituents. California was working on its own healthcare plan and might have even eventually adopted a single payer system. America works best when states can experiment with different solutions to find out what works and what doesn't.

If the Supreme Court strikes down the tax credit provisions for the 36 states who refused to create state exchanges, I hope that Congress and the president can come together and craft a solution that works for everyone. For example, states who want to go along with Obamacare can establish an exchange if they haven't done so already. States who refuse would be allowed to create their own systems, whether it be an exchange, or a single payer system, or whatever the people want.

It's time to stop trying to micromanage our country of 300 million people with just 535 people in Washington DC. We need to return power to the states as the constitution originally intended.

Posted by Tom Cushing,
a resident of Alamo,
on Jul 24, 2014 at 6:05 pm

Roz: I don't think he had a Dem majority for single payor -- they lack the enviable? party discipline of the GOP. For my money, I also think he acted quickly on the economy, but did not do enough, or all the right things, and some of what he did was wrong. It was a big job.

S-P: great -- because I do not favor uber-expensive beer that ultimately has no pay-off. I prefer to have this, twice: Web Link

Posted by Formerly Dan from BC,
a resident of Bridle Creek,
on Jul 24, 2014 at 7:01 pmFormerly Dan from BC is a registered user.

PK - Stop being so disingenuous. The statute does not specify Federal Exchanges, which is the the heart of the case as argued by DC. Stop inserting language that doesn't exist.

Conservator - Thanks for posting the info. I find it kinda fun to debate and like the instant feedback. As to why I frequent Tom's little place, it's because he thinks opposite of me. Other than the A's, Tom and I disagree on everything, so its far more engaging and interesting to comment. And although he probably doesn't realize it, I actually like reading his blog. My only issue with Tom is he can dish out disparaging remarks but can't take it in return and will delete posts. He's thin-skinned, and when you prove him wrong he will delete the post or ignore the point and resort to the tried-and-true method of being a grammar nazi. Classic lefty boomer.

Posted by Peter Kluget,
a resident of Danville,
on Jul 25, 2014 at 5:06 am

On July 23 Formerly Dan wrote: "The Executive, in an attempt to increase the subsidies, then created federal exchanges, without any authority to do so and completely usurping congressional authority."

I responded that that assertion was wrong, that "The option of using a federally-operated exchange, partially or entirely, was always available for the states which didn't set up their own exchanges. It's part of the law as enacted by Congress".

Formerly Dan wrote: "'It's part of the law as enacted by Congress.' Perhaps you could point us to EXACTLY where in the law it was written?
I'll wait for your link or direct quotes."

I responded by citing section 1321 of the ACA as enacted by Congress and quoting the operative language. Conservator cut and pasted the entire section setting forth the directive that if a state fails to establish an exchange the Secretary (of the federal Dept. of Health and Human Services) "shall establish and operate such exchange." spcwt posted a reasoned analysis, including the comment that "If a state doesn't establish an Exchange, then Section 1321 of the ACA says the Federal Government 'shall establish and operate such Exchange.'"

Formerly Dan, sometimes I wonder if you are a parody of a right wing troll or a real person. I don't watch Bill Maher, but someone sent me a link to a bit he did where he noted that people who say "You're entitled to your own opinion but not your own facts" obviously have never watched Fox News.

Posted by Formerly Dan from BC,
a resident of Bridle Creek,
on Jul 25, 2014 at 7:17 amFormerly Dan from BC is a registered user.

PK,

A quote from Jonathan Gruber in 2012:

"What's important to remember politically about this is if you're a state and you don't set up an exchange, that means your citizens don't get their tax credits--but your citizens still pay the taxes that support this bill. So you're essentially saying [to] your citizens you're going to pay all the taxes to help all the other states in the country. I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this."

Posted by Tom Cushing,
a resident of Alamo,
on Jul 25, 2014 at 7:33 am

Am: it looks like Frank Newman and current Justice Godwin Liu were not former judges, and several others appear in retrospect to have been Justices-in-Waiting at the Courts of Apps. If Mr. Cuellar is confirmed he'll be another. FWIW, his wife is Judge Lucy Koh, who is presiding over several of the most far-reaching trial court cases in the state.

Nuke: you appear to have difficulty with distinctions (hence the nickname, of course). For example, there's a difference between comments that go to themes in the content of your many postings (as above), and quite another to assume license to make status-based derogations of your host. That's a crucial distinction -- sort of like the difference between 'having a thin skin' and 'not suffering fools gladly.'

Now, if this comment sends you scurrying for support to 'prove me wrong,' two things will happen: you will demonstrate the above phenomenon, and you will have failed to learn anything. A third thing might also happen -- if you clutter-up what's an actual, interesting thread (a rare and precious commodity in itself) with such materials, I may have to delete it, again. Your choice.

As noted, Obama packed the DC circuit with Democrat judges so that when the full panel of DC Circuit judges hears the case, they'll overturn it and thus avoid a conflict among the appellate circuits so the Supreme Court wouldn't take the case.

The good news is, there doesn't have to be an appellate court conflict for the Supreme Court to hear the case. The losing lead litigator in the Fourth Circuit, Michael Carvin of Jones Day, can now petition the Supreme Court to hear his expedited appeal. If he does that, as expected, then all that is needed is four Supreme Court justices to hear the case and it will be heard.

I think there's a good chance Mr. Carvin will be able to scrounge up at least four conservative Supreme Court justices for this noble cause.

Posted by Tom Cushing,
a resident of Alamo,
on Jul 25, 2014 at 8:16 am

S-P: you fail to mention that EVery Chief Executive "packs" the courts with nominees who live in the same political neighborhood as they do. Bushes One and Two 'packed' the Supreme Court with conservatives Thomas, Alito, and Roberts, and Reagan appointed Scalia and swing vote Kennedy. All the reliable liberals were appointed by Mssrs Clinton and Obama (Breyer, Ginsburg, Sotomayor and Kagan). It's possibly the Prezs' most enduring legacy, when it works out -- indeed, Ike called nominating our own Chief Justice Earl Warren 'the biggest damn fool mistake' of his terms, as Warren morph'd into a liberal on the bench.

But I know you know all that -- are you really counting on readers not to know it, so that your pack language packs more wallop? I think the readership is smarter than that.

I really doubt that the current timid bunch of Supremes is eager to stir-up yet another health care hornet's nest if they can duck it, so no, the filing was predictable (mentioned in the blog, even), and the en banc review, if it happens, will buy them time and give them cover. Other issues wrack these nerves, but not this one.

So what if I failed to mention that every other President packs the court with political cronies? Whenever Obama does something outrageous, like spies on people, kills kids, or whatever, you liberals always say, "So what? Republicans do it too," as if that somehow justifies Obama's crimes. You sound like fighting children who say, "Well, he started it."

America's problem ain't Obama. It's people like you who support him and his criminal activities because, hey, you like his healthcare plan or whatever.

As for your point that the en banc review will buy Obama time. Ummm…no it won't Sherlock. Whatever the DC Circuit does is of no consequence at this point. All that matters is whether Michael Carvin can convince four members of the Supreme Court to hear his expedited appeal. If he succeeds, as is likely, then the tax credit / federal exchange issue will be heard by the Supreme Court.

That's just the rules of the game, homeboy.

You call the Supreme Court "timid." Did you not read the dissenting opinion in NFIB v. Sebelius? As you know, that's the case where the four liberal justices and that wussie Roberts ruled that the individual mandate was constitutional, cause it was a tax. Ok, fair enough. But the four dissenting justices Scalia and crew were livid. You think those guys don't want another bite at the apple? You're such a dreamer.

I think Scalia will convince the other three conservative justices to stand up to Obama. And when they take the case, I think liberals like you will actually need to read these cases and realize that your arguments blow.

I'm not saying that it's a slam dunk for Scalia. Roberts will likely look to weasel his way out of it. But who knows. Maybe Roberts will grow a pair and America can finally be rid of this Obamacare nightmare.

Posted by Tom Cushing,
a PleasantonWeekly.com blogger,
on Jul 25, 2014 at 12:01 pmTom Cushing is a registered user.

S-P: you went out of your way to mention court-packing in two different comments on the same thread. That suggests that you thought it might have meaning to somebody, even if it doesn't, really. The whole blog stands for the proposition that everybody does it -- you appeared to be indicating, twice, that it was Mr. Obama's exclusive province. And of course, everything after 'you liberals' is troll-worthy.

The IRS's Healthcare Tax Credit regulations are the product of politics, not sound law or legal research.

Obama cronies pressured IRS lawyers to have the IRS change the regulations to grant tax credits for health insurance bought on the federal exchange.

The IRS and Treasury lawyers' initial draft of the Sec. 36B regulations gave tax credits only to taxpayers who purchased insurance on "exchanges established by the state" and not to people who purchase insurance on federal exchanges.

In other words, these tax lawyers initially followed the Obamacare law as written. Obama officials at the Treasury Department and Health and Human Services got wind of it and instructed the IRS and Treasury lawyers to ignore the law's text and change the regulations so people got tax credits even on federal exchanges. This, despite the fact that the IRS is supposed to be insulated from political meddling.

The lawyers who wrote the regulations worried they were breaking the law, that they had no statutory authority to deem a federal exchange to be the equivalent of a state exchange. The IRS should've done basic legal analysis, their core duty as the agency in charge of tax law. Instead, they asked Obama appointees at HHS for a memo to cover their backsides. HHS lawyers obliged.

Posted by American,
a resident of Danville,
on Jul 25, 2014 at 7:50 pm

Tom, I have appeared in front of Judge Kohl, good judge, better qualified than her husband, but her husband came to US with his parents as illegal alien so Jerry Brown finds that more important for judicial appointments, far left political views than any judicial experience. Embarrassing!!

Posted by Tom Cushing,
a resident of Alamo,
on Jul 25, 2014 at 9:55 pm

Am: I've read a few different perspectives on nominee Cuellar's bio, and he's really quite impressive as a lawyer, scholar and policy wonk. I'm not sure what he did in your cornflakes, other than be a card-carrying liberal.

Are you sure you're not using 'lack of direct judicial experience' as a proxy for Leftie who could be around for the next 30 years?

Posted by American,
a resident of Danville,
on Jul 28, 2014 at 1:18 pm

Tom: I do not care if you are a Republican appointee or Democrat, it is wrong for a Governor to appoint someone to the state's highest bench, if they have never been a Judge anywhere before. It is also an insult to those Court of Appeals Judges and Superior Court Judges who have served with integrity and have a record to review their jurisprudence, to skip over all of them and appoint someone who has never served a single day as a Judge at any level. There are plenty of well qualified Democratic party Court of Appeal Judges and Superior Court Judges, he could have appointed to the California Supreme Court. But Governor Brown is trying to pull another Rose Bird out of his hat, with his current appointee, and the fact this new appointee came to the US as illegal alien with his parents is a political statement by Brown.

Tom, how many First Round draft picks never spend a day in AAA and immediately start in the majors? Don't you think it is important for someone to learn the ropes, get some experience, before they jump in at the highest level?

Tom, have you ever actually appeared in court in California as attorney of record for anyone? Even extremely gifted trial attorneys I knew, needed some time making the shift from advocate to Superior Court Judge, as being a judge is a completely different animal than being an advocate. Ask anyone who regularly appears in court as a litigation attorney, or any Judges for that matter, and the universal agreement is that it takes time for anyone to get use to being a Judge. That is why most appointees who have never been a Judge anywhere start in the Superior Court, or what use to be called the Municipal Court, for us old timers, before court unification got rid of the Municipal Court.

This has nothing to do with my views of his political party. I would be equally upset if it was a Republican appointed to the Supreme Court who had never been a Judge before.

Your comments disappointed me, as although I know you are a card carrying Democrat, as a lawyer, I expected better from you on this issue, putting politics aside for precedent and jurisprudence, and respect for the bench and judicial experience.

Posted by Tom Cushing,
a resident of Alamo,
on Jul 28, 2014 at 5:16 pm

Am:

1 -- Would you have sent Cespedes to Triple A?? Perhaps think of Cuellar as a Cespedes?

2 -- I think you are overstating by a lot to say Cuellar's nomination is an insult to the whole bench. There are probably some Appellate Judges who were disappointed, just as there are always unhappy passed-overs in regard to Any promotion -- especially one from 'outside the company.' I do not think appellate judging at either level is much like trial court judging -- former is remote, legalistic and policy-oriented while the latter is fact-based and immediate. Academia+ is not a bad proving ground for policy argumentation. And yes, I've appeared in court and have a better than .500 average. I do not choose to make my living that way. BTW, I hope we are not going to have a repeat of the sorry spectacle of you attempting to impugn my credentials as a member of the CA Bar. Understand clearly that I will not permit it -- I earned my membership here by taking the full exam, almost 20 years post-law school, and after previous admittance to the state bars of both IL and TX. You could look it up.

3 -- I think your analogy to Rose Bird is inapposite, and if there's an insult to be had it's yours against Mr. Cuellar. That nomination stands on firm ground, based on the remarkable credentials of the candidate that he has amassed since his impoverished childhood. I'm more inclined to celebrate him as an all-American success story -- rags to riches, or pobreza a la riqueza, if you must.

4 -- my descriptions in the blog are not meant to be normative -- they're descriptive of the world as it is. EVeryone's views on the law depend in part on their political philosophies. That point should not be controversial. Would I prefer a less politicized bench? Yes, and a less polarized Congress, too -- but that does not make it so in either case. And I believe the Exchange Issue rulings are substantially political.

Hell, if I had my way, Bush v. Gore would have been decided on better merits, and many, many things would have been different as a result. Or do you really believe that one, too, was decided on precedent, jurisprudence and the majesty of natural law principles?

Posted by American,
a resident of Danville,
on Jul 28, 2014 at 5:37 pm

Tom, I think your response was little defensive. My comments were not attack on you, just was under impression your background is not as litigation attorney, as most litigation attorneys have similar view to mine on judicial experience, since we appear in court constantly and see and interact with judges constantly.

Cespedes essentially played major league ball in Cuba before coming here, so he is like a Judge in another Country coming here, with judicial experience.

I have noticed lately you have hard time with anyone who disagrees with you, and you go into attack mode. I don't usually agree with your politics but respected your attempts to be civil and encourage sharing of thoughts. Not anymore. Think will stop reading your blog.

Posted by Tom Cushing,
a resident of Alamo,
on Jul 29, 2014 at 9:44 am

Defensive regarding the litigator point -- you bet. I was furious about that prior exchange, and interpreted your inquiry as starting down the same road. Thanks for clearing that up.

As to 'attack mode,' I was trying to draw you out to see what lies behind your very aggressive summary denunciation of the Cuellar nomination, as well as your stated disappointment in the blog. For example, as a litigator, you might not agree with my distinction between trial and appellate work. And maybe you think I got the rationales wrong on the state exchange cases. Also, I wanted to indicate that I do not feel a duty as a lawyer to exalt ideal legal theory over rough-and-tumble practice as an explanation, which appeared to be a part of your discomfort -- so maybe you don't agree with that, either?

It didn't work, obviously, but at least we agree about Cespedes, sort-of. I will take your critiques to heart and try to be less aggressive in tone, and more solicitous of honest contrary opinion. When comments are trollish or insulting, however, it's Katy-bar-the-door, and there's nobody around here named Katy.

Posted by Formerly Dan from BC,
a resident of Bridle Creek,
on Jul 29, 2014 at 10:31 amFormerly Dan from BC is a registered user.

Tom,

It's been interesting to read the back-and-forth between you and American. However, and I say this without malice or ill-intent, you have been patently unfair and ultra-defensive to any comment that calls out your opinion/s.

For instance, just go back and read my very first post and your subsequent response. You say you want honest contrary opinion, yet when I gave honest, contrary and factual opinion/quotes, I get the response that you gave. There was noting insulting in that post and, of course, it escalated from there.

Have I said things I shouldn't have? Yes, without a doubt. But I have always apologized for those things that I know I shouldn't have said but had written in the "heat of the moment".

Posted by paul davidson,
a resident of another community,
on Nov 4, 2014 at 3:38 pm

Just in case anyone needs to fill out a tax form, I found a blank forms in this site PDFfiller. This site also has some tutorials on how to fill it out and a several blank tax forms that you might find useful. I was able to fill out the form I need through this link Web Link.

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